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The Foreclosure Process in a Nutshell

The Foreclosure Process in a NutshellThe foreclosure process starts by the financial institution serving the homeowner with a summons and complaint. In response to the summons and complaint the homeowner must file an answer. The answer must be filed within 20 days if the summons and complaint was served on the homeowner personally and 30 days if the summons and complaint was served by any other means. The purpose of the answer is to allow the homeowner to put in a defense to the foreclosure lawsuit. If the homeowner fails to put an answer in, it is considered they have defaulted. A default is an acknowledgment the homeowner owes the debt and that the bank is entitled to move forward with the foreclosure without opposition from the homeowner. The failure to file an answer to the summons and complaint also keeps the homeowner in the dark with regard to the progress of the lawsuit against the homeowner. The homeowner can end up with the final notice that their home is going to sale and they would not have been able to take any action to stop the sale.

Request for Judicial Intervention

After the financial institution initiates the lawsuit they must file what is referred to as a Request for Judicial Intervention (or an “RJI”). This notifies the court that a lawsuit has been initiated and they ask the court to schedule a mandatory settlement conference with regard to the foreclosure.

The foreclosure settlement conference is supposed to take place within 60 days of the filing of the affidavit of service by the financial institution with the clerk of the court. The court usually sends out a notice to both the homeowner and the bank’s lawyers. The notice states the date, time and place of the conference and it advises the homeowner what if any documents the homeowner should bring to court with them.

Litigation

Litigation in the foreclosure case cannot take place while the case is still before the mandatory settlement conference part. Once the case leaves the mandatory settlement conference part the homeowner can, if they put an answer in, engage in what is called the discovery process. The purpose of discovery is to allow the opposing parties to a lawsuit to obtain records, documents, information, the names of witnesses and any other material necessary to try to prove their case or their defense.

The Summary Judgment Motion

In virtually all foreclosure lawsuits the attorneys for the financial institution bring a summary judgment motion. The purpose of the summary judgment motion is to strike the homeowner’s legal defenses. The summary judgment motion is a request by the financial institution for the court to rule in favor of the lender and strike the answer of the borrower. The financial institution will allege the borrower cannot produce evidence supporting their defenses in their answer. If the judge grants the financial institution’s summary judgment motion, the homeowners’ case is usually considered to be lost. The homeowner at that point can file an appeal with the Appellate Division. This is an appeals court that has the authority to overturn decisions by Supreme Court Judges.

Once the summary judgment is granted to the financial institution all the homeowner’s attorneys can do is usually tie the case up in court and stop the house from going to sale quickly. However, for most practical purposes the homeowner has lost the case if the summary judgment motion is granted.

schlissel-headshotElliot S. Schlissel, Esq. is a foreclosure defense lawyer. He has been helping homeowners keep their home for more than 3 decades. He can be reached for a free consultation at 800-344-6431 or e-mailed at: Elliot@sdnylaw.com.

Defective Mortgages

Mortgage

If you utilized a mortgage broker when you obtained your mortgage he or she was supposed to set up a realistic plan with regard to obtaining the funds to purchase your home. The plan was supposed to be related to your income and in theory was supposed to be related to your financial ability to make mortgage payments. However, in some situations mortgage brokers didn’t do this. Predatory lending involves financial institutions making loans to potential homeowners who have no real potential of making the mortgage payments. The financial institution and the mortgage broker engage in this practice for the purpose of making a quick profit or quick commission.

Signs of Predatory Lending

If your mortgage payment involves a high percentage of your average monthly income such as more than 50% of your monthly income, you may have been subject to predatory lending. If as part of your mortgage scheme your lender was supposed to refinance you at some point in time and it didn’t happen, you may have been subject to predatory lending. If you purchased your home and shortly thereafter found out that it had been valued at a price much lower than you originally paid for it, you also may have been subject to having a defective mortgage.

Foreclosure Defense Attorneys

Should you be facing foreclosure counter lawsuits involving your financial institution can be brought as a response to the foreclosure lawsuit. Predatory lending involves unethical lending practices and financial institutions can be held liable for these actions. If you have been victimized by a situation involving predatory lending we strongly recommend you contact an experienced foreclosure defense law firm to help you deal with this problem.

Elliot Schlissel

Elliot S. Schlissel is a partner in the law firm of Schlissel DeCorpo LLP a well known foreclosure defense firm that has been representing homeowners throughout the Metropolitan New York area for more than 3 decades. He can be reached for a free consultation at Elliot@sdnylaw.com or at 800-344-6431. The firm maintains offices in Nassau, Suffolk and Queens Counties in the State of New York.

Ignoring a Foreclosure Action: This is usually a bad idea!

Ignoring a Foreclosure Action: This is usually a bad idea Some homeowners when facing foreclosure bury their heads in the sand. They find the issue of losing their home so depressing they simply wish to remove it from their minds and therefore they just ignore it. Eventually the homeowners will receive other documents from lawyers soliciting them to represent them in foreclosure or they will receive documents from the bank’s attorneys with regard to their moving ahead with the foreclosure process. The homeowner will receive a motion for summary judgment, and eventually they will receive notice their home is going to be sold. If this happens the homeowners should immediately contact an experienced foreclosure lawyer. However, if the homeowners don’t initially do this and somewhere in the process they wake up, it is generally not too late to stop the home from being sold in foreclosure.

Foreclosure Attorneys

Foreclosure attorneys can assist homeowners in raising defenses in the foreclosure lawsuit. These defenses involve the underwriting process involving the foreclosure, the standing of the financial institution to bring the lawsuit, issues involving predatory lending, violation of Truth in Lending Laws, the conduct of the financial institution who initiated the foreclosure and issues involving the mortgage itself. When these defenses are submitted they can potentially cause a foreclosure lawsuit to be eventually dismissed. They also delay the foreclosure lawsuit from moving forward and give the homeowner the leverage to negotiate a mortgage modification.

Homeowners Staying in their Homes

Elliot Schlissel When represented by an experienced foreclosure defense law firm the foreclosure litigation can end up being a long process. The specialized knowledge of a foreclosure defense lawyer can greatly increase the potential the homeowners will be able to continue to live in their homes.

Elliot S. Schlissel is a foreclosure defense lawyer representing homeowners throughout the Metropolitan New York area for more than 3 decades. He offers free consultations and can be reached at Elliot@sdnylaw.com or 800-344-6431. The law firm maintains offices in Nassau, Suffolk and Queens Counties.

Banks Agree to Eliminate Debts From Credit Reports After Bankruptcy Discharges

bankruptcy relief lawyerJP Morgan Chase and Bank of America, two of the largest banks in the country have agreed to update credit reports of individuals who had owed them money to show the debts were discharged pursuant to bankruptcy proceedings.

Federal Law requires once an individual files a Chapter 7 bankruptcy and is discharged from said bankruptcy that the bank who the money was owed to is required to update the debtor’s credit report to show the debt is no longer due and owing to the bank. Previous notations such as “past due” or “charged off” should also be removed.

Bank of America and Chase Manhattan Bank are taking this action because of Federal litigation which was brought against them which claimed the banks were holding borrowers’ credit reports hostage until these individuals agreed to pay money for debts that were discharged and they no longer owed.

Mortgages Discharged in Chapter 7 Bankruptcies

If an individual or husband and wife file a Chapter 7 bankruptcy and they list their mortgage in that bankruptcy, the mortgage debt is discharged. They therefore no longer owe the money. The bank still has the recourse of proceeding with a foreclosure action and causing the home to be sold and using the proceeds from the sale of the home to pay off the debt that was owed. If the sale of the home does not cover all of the debt, the homeowners are not subject to a deficiency judgment for the balance due and owing. If the bank refuses to remove the negative inference of the unpaid mortgage debt from the former homeowner’s credit reports it will have a negative impact on their obtaining credit in the future. It will also prevent them from rehabilitating their credit and obtaining a new mortgage in the future.New York family law attorney

Foreclosure Sale During A Divorce

Today’s video blog we talk about how a court recently decided regarding a home in foreclosure during a divorce proceeding:

Elliot S. Schlissel, Esq. can be reached at either 516-561-6645 or 718-350-2802, or by email to schlissel.law@att.net.

Foreclosure Action Stopped by Death

Nettie Francis had executed a mortgage. The holder of the mortgage brought a foreclosure lawsuit against her. In May of 2010, the court had declined to sign a proposed judgement of foreclosure and sale. The court took this action because there had not been a submission of an order showing the mandatory residential foreclosure court conference had been held in the case.

Husband Seeks to be Named Administrator of Wife’s Estate

In July 2010, Nettie died. Nettie’s husband brought an action to intervene in the case. In this proceeding he submitted, to the court, a death certificate proving Nettie died in July 2010. His paperwork also showed since her death he had been taking care of the home. He indicated in his motion he was in the process of bringing an application in the Surrogate’s Court to be appointed the administrator of Nettie’s estate. He brought this action as an intervenor to be named a defendant in the foreclosure lawsuit.

Counsel for the financial institution argued against Nettie’s husband being allowed to intervene in the lawsuit. He claimed this application didn’t set forth a claim or defense for which the intervention in the suit was sought. He also claimed the motion being made by the husband was not made in a timely basis.

Supreme Court Justice Robert McDonald sitting in Queens County held the death of a party divested the court of jurisdiction. Upon Nettie’s death the proceedings were automatically stayed. The proceedings could not proceed without the substitution of a personal representative or an executor for the deceased party.foreclosure advocate

New York Debt Collection Proposals

debt collection defense lawyerFinancial regulators in New York State have recently proposed sweeping new reforms concerning debt collection practices. There have been more than 13,000 complaints filed against debt collection agencies in the State of New York within the past two years. Debt collection companies sometimes buy defaulted debts for a few cents on the dollar and proceed to collect them with very aggressive tactics. The complaints against debt collection companies range from harassing phone calls, providing information concerning the debts to third parties and trying to collect more than is due and owing.

Federal Regulations

There is a Federal Statute called the Fair Debt Collection Practices Act. This law regulates the hours debt collectors can make phone calls, prevents them from making threats, using obscenities and making numerous phone calls for the purpose of harassing the debtor.

The New Regulations

The new regulations in New York would require debt collectors to verify all disputed debts. In addition, the debt collectors would have to advise consumers when the statute of limitations concerning their debt has expired. The debt collector would have to advise the consumer if a payment on a debt is made after the statute of limitations has expired that this would restart the statute of limitations running all over again. The new regulations would require debt collectors to provide debtors a “clear and conspicuous written document” confirming payment schedules on debts.

These regulations will go into effect upon publication in the State Register. Publication would take place after there has been a 45 day period of time for the general public to make suggestions and comments concerning these regulations. The purpose of these new regulations according to Ben Lawsky, the Superintendent of the Department of Financial Services for New York State, was “to level the playing field for consumers.”

The Author

bankruptcy helpElliot S. Schlissel, Esq. is an attorney practicing law in the metropolitan New York area. Elliot and his associates represent clients in bankruptcy matters. In addition, the firm has extensive experience in defending foreclosure lawsuits.

Foreclosure And Your Credit Score

foreclosure defense and bankruptcy attorneysIf your home goes into foreclosure it will have a negative impact on your credit score. However, the nature and extent of the negative impact may be different than what you believe it to be. When a financial institution brings a foreclosure lawsuit related to a mortgage default, the institution will normally report to the credit agency there is a foreclosure or a home has been foreclosed upon. This information on your credit score will not necessarily impact on the outstanding balance it shows you owe on the mortgage. The credit report will most likely continue to show the entire outstanding balance of your mortgage being due and owing on your credit report. This negative credit material can stay on your credit report for seven years.

Sales Of Homes In Foreclosure

At the end of the foreclosure process, if the bank is a successful, your home will be sold. In the event the sale of your home at the foreclosure sale does not pay off the entire outstanding debt due in owing on your mortgage, the remaining balance may be shown on your credit score as a “deficiency “. The financial institution may be able to bring a proceeding to collect on this deficiency amount. If they do not take action to collect this deficiency they can report it to the Internal Revenue Service as a forgiven debt. This will cause you to receive a 1099 showing the deficiency as income to you in that tax year. This will cause you to pay income taxes on this deficiency debt!

Foreclosures On Second Mortgages

When the financial institution forecloses on a first mortgage, the second mortgage may continue to be maintained on your credit report by the credit reporting agency. The second mortgage will not show it was foreclosed on because it is a separate and distinct financial obligation.

Bankruptcy And Foreclosure

It may be necessary to file a Chapter 7 bankruptcy to eliminate deficiency judgments related to first mortgages and the personal obligations on a second mortgage. To better understand the inferences and long-term impact on your credit score it is strongly suggested to contact either a bankruptcy lawyer or foreclosure lawyer.foreclosure and bankruptcy  assistance

FHA Rescues Homeowners

The Federal Housing Authority (FHA) is coming to the rescue of more than 3000 homeowners whose homes were damaged by Superstorm Sandy. Under a new program, the FHA is allowing these homeowners whose homes were damaged by Superstorm Sandy to apply for mortgage loan modifications. The purpose of this program is to help reduce the monthly mortgage payments of homeowners whose homes were damaged by Superstorm Sandy.

Mortgage Moratorium Ends

Initially, after Superstorm Sandy hit the northeast, there was a mortgage moratorium program established. That program is coming to an end. However, homeowners whose homes have never successfully been repaired are still entitled to the moratorium under this former program. At a news conference which took place at New York Senator Charles Schumer’s Manhattan office, United States Housing and Urban Development Secretary Shaun Donovan stated “this will give homeowners the breathing room and they need.” “Many are still struggling and it is heartbreaking to know that people who lost their homes because of this natural disaster can now lose their homes from a man-made disaster: a foreclosure.”

Loan Modifications

A new loan program will now allow more than 1/4 million New Yorkers to obtain “stream lined loan modifications.” This program will apply to areas affected by Superstorm Sandy.

Additional measures to help families of damaged homes are being considered by Fannie Mae and Freddie Mac. New York Senator Charles Schumer is also urging private financial institutions to develop programs of a similar nature to assist homeowners whose homes were damaged by Superstorm Sandy recover from this difficult situation. Senator Schumer specifically stated “it is time for the banks to step up and assist homeowners who have been doing the right thing all along.”

About The Author

foreclosure assistanceElliot S. Schlissel is the former President of the Commercial Lawyers Conference of New York. He has more than three decades of legal experience litigating foreclosure related cases, dealing with predatory lending issues and foreclosure related bankruptcy problems. Elliot and is dedicated staff of attorneys are available seven days a week to talk to prospective clients. Call for a free consultation at 1-800-344-6431, 516-561-6645 and 718-350-2802.

Governor Cuomo’s Buyout Plan for Homes Destroyed by Superstorm Sandy

foreclosure defense attorneyGovernor Cuomo wants to utilize four hundred million dollars of federal housing money to fund a buyout program of homes destroyed by Superstorm Sandy. Governor Cuomo had stated these homeowners are trapped because no one will buy their home since it was destroyed and it was in a flood zone. He wants the state to pay one hundred percent (100%) of the pre-storm value of these homes. Governor Cuomo seeks to target the hardest hit areas with his buyout plan.

Qualifying for the Buyout

For a homeowner to qualify for a buyout, the home must have sustained more than fifty percent (50%) damage. This damage must have reduced the home’s value by more than half of its pre-market value. In addition, the governor is working with both Nassau and Suffolk counties to provide funds for homeowners to raise the elevation of their homes and to rebuild their homes stronger so they will withstand future storms. Governor Cuomo stated, AI would rather spend more money and build back a home the right way, with the right design and the right technology, than build it back in two years and in four years and in six years.

Governor Cuomo was confident since New York State has been awarded thirty billion dollars by the Federal government there would be sufficient funds to cover these buyouts.

About the Author

homeowner advocateElliot S. Schlissel, Esq. has been representing homeowners throughout the metropolitan New York area for more than twenty five (25) years regarding real estate issues, issues concerning fraudulent foreclosures, loan modifications, and improper bank practices andforeclosures. His law firm seeks to keep homeowners facing foreclosure in their homes.

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